Tuesday, December 02, 2008

The thick end of the wedge

Just popping back to add a quick observation on all of this 'police state' business: The sheer ludicrousness of most claims (and Henry Porter on Damian Green really does just show how wind-up-and-go this rubbish is) masks a more serious charge.

In the absence of much by way of yer actual totalitarianism, it seems to me that most of it is less a complaint about any actually existing illiberality, and more the question of how apparatus is being put in place that could be abused by a future government. None of this stops current ministers being written up as though they were in the KGB.

That a police state is being constructed in the wings, and once it's been completed, it can be wheeled on centre-stage so that someone can crank it up. The upside to all of this is that Henry Porter does, indeed, get arrested and has his fingernails pulled out.

The downside is that Parliament would jump in and reverse unacceptable legislation (as it did, unwisely in my view, on the 'right' to protest outside Parliament).

The thing about these 'thin end of the wedge' arguments is that you'd take them seriously if they weren't written from the thick end of it.

12 comments:

stephen said...

In the absence of much by way of yer actual totalitarianism, it seems to me that most of it is less a complaint about any actually existing illiberality, and more the question of how apparatus is being put in place that could be abused by a future government. None of this stops current ministers being written up as though they were in the KGB

I also find it frustrating that some of my comrades on the civil libertarian front use the slippery slope argument. Frustrating because there is plenty of illiberality and boneheadness around already without having to posit a future totalitarian government. Look at the data Sharing Review published last week by the Home Office, which proposes that all legal obstacles be removed to the sharing of confidential data across government departments and agencies and be replaced by a fatuous non-statutory 'robust need' criterion. Denying the citizen the empowerment to manage his own personal data, and to control its dissemination, is pretty illiberal whether or not we live in a police state or a democracy. And of course this is why the government wants the national identity register and why none of the usual arguments for ID Cards ever made any sense, even if you were a supporter of the bloody things.

With the rule of law, we see a steady trend toward absolute offences and administrative punishments, which circumvent criminal standards of proof. ASBOs started this trend. When you see some of things that ASBOs are given for you really shake your head in dismay. They are crying out for reform.

But when we get matters sexual we find even more illiberality. It is difficult to find words strong enough to condemn the criminalisation of 'extreme porn' but suffice it to say that it doesn't just prohibit 'snuff films' but also photographic representation of all manner of consensual play acting and even BBFC stuff, if taken out of context. We are the only liberal (sic) western democracy to have enacted such legislation. The proposed criminalisation of paying for sex as another absolute offence is more law making for the sake of it. Restricting the offence to having sex with a 'trafficked woman' is meant to appeal in equal measure to fundamentalist feminists and anti-immigration obsessives.

Paulie said...

Like I said Stephen, a dialectic, not a one-way trend.

On ASBOs, I lived in a block of flats in the mid-1990s. Mostly old people or young families with kids who would play on the communal gardens. Then one day, a young woman was moved in to one of the flats by the council. She had what amounted to a PA system in the house and she used to put records on in the house and then go and lie on the park - 100 yards away - to listen to them. Her boyfriend moved in with her bringing a Rottweiler that was permanently off the leash. All complaints were met with threats (either explicit when no witnesses were there or implicit when they were). The music went on all night, the police had no powers (they lay with the council)and the council only worked 9-5.

She turned the whole place into a living hell for everyone for a very long time and there was no redress that didn't involve huge legal bills for all concerned (except her). All steps we eventually took resulted in minor slaps on the wrist that did nothing to modify her behaviour. Myself and a few of the neigbours were actually meeting up to plan a vigilante solution because nothing else would work - thankfully, for all concerned, she packed up to live somewhere else at this point and things calmed down. But the ASBO provided powers that attempted to deal with this problem. Not perfect, but the New Labour approach and urgency on this was in sharp contrast with what went before.

And on Pr0n, can't you see that the ability of people to access porn of pretty-well all kinds has changed beyond recognition in the last decade? We have had a de-facto liberalisation that no government could have legislated for had it wanted to. Individual liberties have significantly trumped the government's ability to applied agreed rules. I'm not saying that this is a bad thing btw. But to moan about illiberality on this issue shows an unwillingness to grasp the point that *everything* - not just the law - is changing.

On prostitution - at a time of unprecidented population flows and clear evidence that there are a lot of people being traffiked, I'm amazed that anyone would take any polarised position of principle on it. People shouldn't shag other people if they think that they are there because they've been coerced. This is fairly straightforward to me, and if someone gets banged up for doing so, I'll have bigger things to worry about.

I suspect that the net effect may not be 100% positive, but I think that looking at everything though an absolute film of the primacy of individual liberty at all times is not what governments are for.

I want governments to enact laws to stop bad things from happening - and the reason they do this quite a lot is because most people agree with me on this.

I don't think they do it very well as it happens - but the fact that they do it at all isn't the problem.

stephen said...

Sorry Paulie, but the attenuation of criminal standards of proof is not justified by reciting a particularly nasty case of anti-social behaviour. I could relate other cases where ASBOs have been dispensed inappropriately on little evidence or where their use is abusive, such as mentally ill people being given ASBOs for attempting to commit suicide. You also appear to take the line of argument 'x is a problem, y purports to be a solution therefore any who opposes y must be in favour of allowing x to continue'. A fallacious mode of reasoning. In the case you cite, there certainly were laws which *could* have been used to curb the neighbour before ASBOs were invented but perhaps invoking them might have cost some money.

I find your rationalisation of the extreme porn laws rather chilling. You appear to think that it is the role of government to regulate access to porn or any other literature by default. It is not the role of government to apply 'agreed rules' unless clear evidence of harm can be adduced. Here we are in fundamental disagreement. The government's consultation document asked the question 'are there any good reasons why people should be permitted to view this material'. No doubt you would concur with that sentiment. It is not for the citizen to justify his viewing habits to the government but for the government to rigorously defend any restrictions it deems appropriate. This has not happened with the extreme porn prohibition where even the government admitted that there is no clear compelling evidence of harm. This is the government's 'clause 28'. Morally repressive and addresses a problem that doesn't actually exist.

You say that 'People shouldn't shag other people if they think that they are there because they've been coerced'. I agree completely. However the proposed legislation intends to make it an absolute offence, with no defence available that the man had reasonable grounds to believe that the woman was not coerced.

You imply that I am being absolutist. No I'm not. All laws involve a balancing of individual rights against the public good, however that may be defined from time to time. This point is not in dispute. But when individual rights are curbed, I expect the measures to be necessary, proportionate and effective. None of the examples I have cited can be said to meet those criteria in full. You go on to say 'I want governments to enact laws to stop bad things from happening - and the reason they do this quite a lot is because most people agree with me on this'. Well, yes. Don't we all? I think what you are trying to say to me is that 'Labour are doing their best, they've got their heart in the right place, so if they fuck up up on the law making front, well it's better than doing nothing isn't it?' Here your partisan side is showing for I do not think you would give another government such an easy ride. This is serious. People will go to jail for these offences and I expect from any government that proposes to curtail individual liberty a damned sight better argument that Labour or its supporters have been able to muster.

If you condemn that as 'bloggertarianism' then so be it. It believe it to be more in tune with the traditions of this country as a liberal democracy than your position.

Paulie said...

Firstly, I'm not particularly defending ASBOs. As I said, they're not perfect. But they aren't The End Of A Thousand Years Of History either. Like I said, it's all a dialectic. I'm no lawyer, but it seems to me that - over the last ten years - we've had a bit of prodding around the edges of the standards of criminal law. The idea that you can make a lot of people's lives a misery because the cost of compiling the prosecution case is too high, or that it won't be borne by the state is not a reason to do nothing.

They've done *something*. It isn't perfect, and if it really does demonstrably offend against the basic principles of justice, Parliament will eventually deal with that issue. I'd also be inclined to agree that this government feel compelled to be *seen* to be doing things and the result is ill-considered legislation. And this is, I think, the real problem - not any irreversable offences against aynchunt libertees.

If you find my views on porn chilling, you're very very easily chilled. In living memory, Porn has never been less regulated or censored than it is today. More people have access to more explicit material than ever before. As it happens, I have a lightly held view that this is not a bad thing. As long as porn films aren't resulting in people being coerced, then I guess I'm OK with them.

My point is that the dialectic in this case - no matter what the principles of it are - is very much in a liberal direction. And I'd prefer there to be a dialectic on the subject where parliament takes a view than the kind of absolute position that you seem to be advancing. Chill out, FFS. Your comparison with Clause 28 really is utterly ridiculous, and if you had an ounce of proportion on this question you'd realise this.

You say "the proposed legislation intends to make it an absolute offence, with no defence available that the man had reasonable grounds to believe that the woman was not coerced."

Well if this results in some dreadful miscarriage of justice, parlaiment will undoubtedly reverse it. As I said, I'm not sure it's a good bit of legislation myself, but I'd sooner that Parliament were taking a view on it than that we were simply allowing a fetishised version of individual rights to always trump all but the most perfectly balanced legislation.

I suspect that I'm probably comfortably within the most liberal quartile of the population on most things. I'm just bothered by the fact that every debate seems to he argued on the ground of the shrillest and most obsessive >5%

stephen said...

And you want more examples of illiberality? Breaking news in the Queen's Speech, a law giving the police and immigration officials the right to demand the production of proof of identity. The sus law returns but now non-compliance will get you up to 51 weeks in jail or £5,000 fine. Hang about. When the 2006 ID Cards Act was passed the gtovernment said that it had no intention of requiring people to carry an ID Card. To be honest, I am not surprised that such laws are being introduced. The alleged 'law'n'order' benefits of ID Cards could not be realised if Joe Public is allowed to walk around without carrying it. No doubt some will bleat, 'but other European states have such laws'. Yes they do. They also pay a price in heightened racial tensions as a result. Witness the riots amongst muslim youth a few years ago in France, widely attributed to officious identity checks. Still, if the government thinks it will do some good and 'people want it', that's OK, isn't it?

Paulie said...

I understand that the Conservatives propose to scrap ID cards if they win the next election?

stephen said...

I never claimed that ASBOs were the end of history either. From the point of view of the administration of justice, I think they have significantly increased the potential for miscarriage of justice and are often ineffective against the sort of criminal behaviour they were intended to curb. I think they should be reformed. They should be imposed only on criminal standards of proof. That would curb many of the abuses. But since Labour does not appear to see the problems, and indeed sees the future of justice in being in more, not less, administrative justice, this is not likely to happen.

I am not sure what relevance your personal attitudes about pornography are. The point I am arguing is that the 'extreme porn' law is an illiberal law that is a legitimate target for anyone who cares about civil liberties. Access to pornography has been facilitated by the internet but so what? I am talking about the attitude of law makers. The Obscene Publications Act sought to control 'obscene' material by means of the test 'likely to deprave and corrupt' and applied only to the publisher. The 'extreme porn' act considerably loosens the criterion for prosecution - no one needs to be depraved or corrupted - and seeks to criminalise the consumer. My comparison with clause 28 is entirely apt. Clause 28 criminalised the promotion of homosexuality in schools as a result of agitation in the yellow press about children being exposed to 'pro-gay propaganda'. The problem was non existent and the solution, authoritarian. The extreme porn ban was a government response to the trial of the murderer of Jane Longhurst, whom it was claimed frequented 'asphyxia' web sites and the media hoo-ha that followed. Since then no one has been able to establish what harm such material might cause yet it was voted through all the same. Like clause 28 it seeks to solve a non-existent problem.. Unfortunately that is where the similarity ends for although no one was ever prosecuted under clause 28 that is unlikely to be the case for extreme porn. I suggest you read its provisions if you doubt that it represents a step change in the way that the state attempts to control what we view. It is even an offence to collate screenshots of say hanging scenes from BBFC certificated films!

'Well if this results in some dreadful miscarriage of justice, parlaiment will undoubtedly reverse it' Well I would rather prevent the miscarriages of justice in the first place. Law making isn't some silly heuristic game where will try things speculatively to see if they work. Bad laws have real consequences. I am also far from sanguine about Parliament's reversing it. It took 70 years to reverse the criminalisation of 'indecent acts between men'. Once laws are on the statute book it can be very difficult to remove unless there is substantial political will to do so. Bad laws that impact relatively few people can be very long lived. In the case of 'extreme porn' we really don't know how many will be affected. I suspect the prosecutions will be few, based on police discovery when looking for something else, but the fear that they may be committing a serious sexual offence may affect millions.

You declare that you'd 'sooner that Parliament were taking a view on it than that we were simply allowing a fetishised version of individual rights to always trump all but the most perfectly balanced legislation'. Whereas I would prefer that Parliament only legislated when necessary and when it does, the laws it passes are proportionate and necessary. You are surely not claiming that those principles amount to a 'fetishisation of individual rights'? We seem to have gone full circle with you directing your comments towards the extreme libertarian standpoint. Perhaps you'd care to debate with me rather than the phantom libertarian in your head.

Paulie said...

"ASBOs .... are often ineffective against the sort of criminal behaviour they were intended to curb."

They are also often effective against the kind of problems they were set up to address as well. They were established to address a problem that wasn't being addressed elsewhere.

If there is a better way of doing them that the professionals concerned are prepared to go along with, and that Parliament is prepared to pay for, then let me know what it is - and let a few MPs know as well.

Something has to give between, on the one hand, criminal law which is hugely cumbersome, expensive, and unresponsive to the very justifiable demands that the public put on it, and on the other, the expectations that the public have of the public sector.

When you call the cops and the council and they both tell you that they will spend tens of thousands of pounds using the courts and still not solve a simple problem, you start to say to yourself that maybe a bit of slighly more arbitary power in properly supervised hands wouldn't be the end of the world.

That it gets abused in the ways you outline makes a case for reviewing the application of the rules as much as anything. FFS, if there is a better option that addresses the reasons that they were introduced, and you can make the case for it, make it.

Christ: "...although no one was ever prosecuted under clause 28 that is unlikely to be the case for extreme porn."

No-one was likely to be prosecuted under it. Public sector regulation can't be compared to other types of criminal law (and I say again, I'm not a lawyer, so I'm not sure I've put this as precisely as I can, but surely you know what I mean?). In the great scheme of things, the regulation of porn is a great deal less restrictive now than it has been in living memory. You refuse to acknowledge this by banging on about one example of how things have got (in your view - I've never heard of this issue by the way) worse. THis is why I think I'm arguing with an obsessive libertarian rather than a more pragmatic democrat.

You say "I would prefer that Parliament only legislated when necessary and when it does, the laws it passes are proportionate and necessary."

Well, in my view, Parliament should legislate whenever it wants to and it should be the judge of what is proportionate and necessary. If we don't like it, we can vote for a different one.

Most of my blog deals with ways that it could be the forum of a more effective representative democracy. It's funny how few people come here to deal with any of those issues.

stephen said...

In the great scheme of things, the regulation of porn is a great deal less restrictive now than it has been in living memory. You refuse to acknowledge this by banging on about one example of how things have got (in your view - I've never heard of this issue by the way) worse

I don't refuse to acknowledge it. I simply don't think it is relevant in discussing the pros and cons of the extreme porn ban. That the government has liberalised the laws surrounding some pornography does not legitimate its criminalisation of other forms of consensual adult sexual activity. Why would you think that it did?

THis is why I think I'm arguing with an obsessive libertarian rather than a more pragmatic democrat

Yes well it may suit you to pigeonhole me that way, but if you think an insistance that laws be necessary, proportionate and effective makes me an 'obsessive libertarian' then I guess most of liberal humanist thought could be dismissed with equal insouciance.

Well, in my view, Parliament should legislate whenever it wants to and it should be the judge of what is proportionate and necessary. If we don't like it, we can vote for a different one

I am not sure what purpose that pompous irrelevant paragraph served, but yes I agree, Parliament is sovereign, as a matter of constitutional fact. But so what? The argument I have been making is that civil libertarians have a legitimate case against this government. Yes, we can do our part on election day but politics doesn't begin or end on election day.

Paulie said...

You know what? My main point here has been that all of these issues are in a dialectic. And you haven't acknowledged it once.

Methodological individualism is not the only means of framing laws that are "necessary, proportionate and effective."

On the 'pigeonholing', you only *ever* come here arguing a variation on the same point, and I can't see your blog anywhere so all I know about you is that if there's a lower-case s-stephen in my comments box, I'll know what it's going to say before I open it.

My last 'pompous paragraph' is there because there is a significant difference between it and your equivalent:

"I would prefer that Parliament only legislated when necessary and when it does, the laws it passes are proportionate and necessary."

stephen said...

You know what? My main point here has been that all of these issues are in a dialectic. And you haven't acknowledged it once

Can we speak in English please not Second Year politics student. As it happens, I have been responsive to your position. I do not consider that individual rights are paramount in all circumstances or fail to acknowledge the concept of the public good and these considerations must rightly form an analysis of policy and laws. I do not insist that individual rights always trump collective rights. These are simply considerations which determine whether laws are proportionate. However I do expect that laws are derived from rational and evidence based criteria. Don't you?

Methodological individualism is not the only means of framing laws that are "necessary, proportionate and effective."

But western societies are individualistic and our legal and intellectual tradition favours the individual unless evidence is adduced that the collective should be prevail. This is also engrained in demotic culture where the awkward squad always cavils against arbitrary decisions by those purporting to represent the collective good. This is a classical liberal position not a libertarian position.

On the 'pigeonholing', you only *ever* come here arguing a variation on the same point, and I can't see your blog anywhere so all I know about you is that if there's a lower-case s-stephen in my comments box, I'll know what it's going to say before I open it

But it is a classical liberal position that I argue. This is obviously anathema to you. But the same can also be said of your hobby horses. You exclusively represent concerns about civil liberties as the self-serving concerns of libertarians and Tories. In another age you'd have probably denounced me as a 'bourgeois individualist' but since you are partisan New Labourite I guess using 'bourgeois' as a insult is out. After all, what else would you call most of the PLP?

My last 'pompous paragraph' is there because there is a significant difference between it and your equivalent

I really don't see what point you are attempting to make. I can perfectly well express a preference that Parliament behaves in a certain way whilst acknowledging that it has the power to do whatever it likes. There is no inconsistency in that position. I also think that we have a right and a duty to speak out about how Parliament behaves and to put whatever lawful political pressure we can on MPs to change their views. I certainly do not think that our options are limited to putting a cross on a piece of paper every 4 or 5 years.

thegrimpeeper said...

Dear Paulie...thanks so much for the link thing, most appreciated.

Glad to see you're putting things in perspective. As Orwell said (well, my garbled memory of it anyway), if you go round calling everyone you don't like a fascist, what are you going to call the real fascists when they turn up.

So, 10 out of 10 for being the voice of reason, but a big fat zero for missing the point entirely.

We're not on our way to a police state, nor can anyone seriously believe that the current cabinet dresses up as KGB officers in their spare time.

Rather like a member of the general staff prior to the second world war still fixated on trenches and static firepower, you've failed to update your understanding of the current threat.

The increasing hard wiring of the state into more and more elements of individual choice and activity is making any need for "fingernails pulled out" completely redundant. Government control is exercised through a myriad of administrative processes, deliberately ill defined legislation, rationing of resource, normalisation programmes and marginalisation of the different.

A straighforward drive towards totalitarianism would be an easier option to deal with as it would (I hope) provoke a clear cut response which would probably see us both on the same side of the barricades.

You do politicians a great favour by reducing the issue to a simplistic, black and white battle between nailpulling and freedom from nailpulling. When Gordon has gone, Cameron will get out his book on nudging, misread it and ensure that each nudge carries a threat (nicely judged threats each carrying support from respectable pressure groups, but all amounting to the same thing). I suspect quite a few of the things you hold dear will be the targets of Cameron's nudging.

love and kisses

thegrimpeeper